Questioning the ‘paradox’ of constitutionalism: ‘the people’ as a legal category and its implications

This paper problematizes the ‘paradox’ of constitutionalism and argues that once ‘the people’ is transformed from a political to a legal category, it ceases to be a self-standing paradox. Although it remains uncontested that it is the constituent power of ‘the people’ that creates formal constitution as constituted power, which in turn constrains the ‘power’ of ‘the people’ leading to the ‘paradox’ of constitutionalism, such a juxtaposition reflects an artificial tension. Given that post-1989 constitutionalism redefined ‘the people’ by rendering it as a ‘legal’-normative category, constituent power is absorbed into a higher order of a transnational-legality, which simultaneously constitutes constituent power and constituted power-that constituent power is supposed to constitute. Thus, re-conceptualisation of ‘the people’ as a legal category and the cyclical dynamic that it induces between constituent and constituted powers bring the paradox and assumptions based on it into question.